In less than six weeks, the e-communications landscape in Canada
will undergo a seismic shift. On July 1, 2014, Canada's
anti-spam law (CASL) comes into force. Many businesses have
assumed, incorrectly, that it simply won't apply to them, or
that their existing practices are just fine; or even that the
emails they're sending aren't "spam."
CASL, however, is not your garden-variety anti-spam law; its
measures extend far beyond what many expected. CASL applies to
numerous routine business communications, specifies precise form
and content requirements for messages, and its reach extends beyond
The good news is that there is still time to comply with CASL
– but only just. Businesses that have been on the fence, or
in denial, should use this opportunity to take a hard look at their
practices and the law...and take action while they still can.
More and more clients are approaching us for assistance as the
deadline nears. In some cases, we are advising on the
enterprise-wide rollout of a CASL compliance program; in other
cases, we are assisting with risk assessment and a staged triage of
e-communications to ensure that liability hotspots are addressed
before the deadline. We've also worked with U.S. companies and
their Canadian affiliates to ensure that customers on both sides of
the border can continue to receive commercial electronic
McCarthys has been working with clients for over a year, helping
to prepare them for the new e-communications landscape. We are
experienced counsel in CASL matters and are well placed to bring
solid value to clients as we help them become compliant efficiently
(and before the July 1, 2014 deadline).
Some of the key points that are driving clients to contact us
now are the following:
CASL creates an opt-in, not opt-out, regime.
This means businesses must have consent from everyone to whom they
send commercial electronic messages, unless the message falls into
an exempt category. Pre-checked boxes for consent and other
already-completed forms are not acceptable.
Sending an electronic message to ask for consent after
July 1, 2014 is prohibited. While businesses can send
e-communications asking for consent now, these messages are
prohibited after July 1, 2014 unless certain types of relationship
requirements are satisfied.
Global consents are not permitted. In other
words, just because one affiliate has consent (express or implied)
from the intended message recipient doesn't mean that other
affiliates can send commercial electronic messages to that
recipient. Requests for consent must be carefully constructed if
affiliates want to send commercial electronic messages to each
Fines can be significant. Imposed by the CRTC,
these can be up to $1 million for an individual, or $10 million for
businesses, per violation.
Officers and directors may be subject to personal
liability. Officers, directors, agents and mandataries of
corporations are personally liable for CASL violations committed by
those corporations, if they direct, authorize, assent to, acquiesce
in or participate in the commission. Employers are vicariously
liable for the acts of employees.
Class actions may be commenced. CASL will
permit aggrieved individuals a private right of action commencing
July 1, 2017 – presumably this will be in the form of class
actions. This will likely shape CASL compliance significantly.
We can assist our clients with the compliance aspects of CASL,
and with laying the groundwork for a due diligence defence by
helping businesses demonstrate that they have established policies,
procedures and processes to address CASL compliance.
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